Research On The Legal Nature Of Open Government Data

Open government data is a new administrative activity in the digital era.There is a basic problem to be solved in the legislation,which is the legal nature and how to control the legitimacy of the administrative activity in the administrative act law.Government data and its openness are complex.First of all,government data is a new carrier of government information except paper,which belongs to government information;the use value of data makes data rights have property attribute;the public finance and public management make government data have publicity.Secondly,open government data promotes the development of digital economy.In practice,it also shows the function of supervising the government operation and promoting the public participation.Based on the compound nature of government data and its openness,there are two representative views on the legal nature of government data opening,i.e."deepening of government information opening" and "public property management".Open government data is the development direction of government information disclosure in the digital era.based on the right to know,the right to access and use government information is developed.However,Open Government Data goes beyond the freedom of information: first,Open Government Data is based on the economic management function of the government rather than the expression,supervision and participation of citizens;second,the need for format conversion and cleaning of government data does not conform to the characteristics that government information does not need to be processed and analyzed;third,the regulations on the opening of government information cannot cover the promotion of administrative organs after opening up;The use obligation is not enough to solve the conflict between the government data opening and the right of privacy.The cognition of "public property management" agrees with the property value and publicity of government data,but it is difficult to fully realize the policy effect of open government data.The view of the nature of state-owned assets management can be explained by the theory of state private property,but it will fall back into the dilemma of government data monopoly,which is not conducive to the extensive acquisition and mining of government data.The nature of public property management can reasonably explain the obligation of administrative organs to manage,maintain and update government data and the order of using government data.However,it focuses on the preparatory administration in the early stage of opening,neglects the role of "organization coordinator" in encouraging the society to actively use government data and promoting the collaborative cooperation between the government and the market,as well as between the main bodies of the market.Open Government Data provides the means of production for the operation and innovation of enterprises,creates conditions for the cultural development and scientific research of individual citizens,and the results of the open government data ultimately feed back the public welfare.Therefore,in the sense of legal effect and administrative tasks,Open Government Data constitutes a broad sense of performance administration with the content of providing government data.Open Government Data does not belong to the item that can only make laws stipulated in Article 8 of the legislative law,and whether it is open or not will not infringe the basic rights of citizens.According to the importance theory of legal reservation,it does not need the authorization of the legislature.Budget legalism becomes the formal legitimacy basis of this activity.However,in order to achieve the substantive legitimacy of procedural and substantive justice,the opening of government data still needs regulatory design.Specifically,the scope of open government data is determined according to the demand standard of economic and social development and the procedure of public participation.The exacutive sector shall follow the principle of equality in the process of opening up,and shall not exceed the charging standard of administrative institutions.In order to ensure the smooth progress of opening,the exacutive sector has the obligation to ensure data security.In addition,if a citizen,legal person or other organization thinks that the openness damages its legitimate rights and interests,the citizen,legal person or other organization shall have the right to obtain relief through administrative reconsideration and administrative litigation.